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Sentencing the Guilty

Chapter 15

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Eighth Amendment

• Excessive bail shall not be required, not excessive fines imposed, not cruel and unusual punishments inflicted.

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Reasons for Sentencing

• Retribution: “an eye for an eye, a tooth for a tooth.”

• Incapacitation: “lock them up and throw away the key.”

• Deterrence: “let this sentence be a warning to others.”

• Rehabilitation.

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Retribution

• “An eye for an eye, a tooth for a tooth.”

• Focus on past behavior.

• Severity of the punishment is directly tied to the seriousness of the crime.

• Desire for revenge.

• Just deserts: deserved punishment.

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Incapacitation

• “Lock them up and throw away the key.”

• Crime can be prevented if criminals are physically restrained.

• Future-oriented: goal is to prevent future crimes, not punish past ones.

• Focus is on the personal characteristics of the offender.

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Deterrence

• “Let this sentence be a warning to others.”

• Purpose of punishment is the prevention of future crimes.

• Punishment should fit the criminal.

• Jeremy Bentham.

• General deterrence vs. special deterrence.

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Rehabilitation

• Criminal behavior is the result of social or psychological disorders, and treatment of such disorders should be the primary goal of corrections.

• Offenders should be treated, not punished.

• Sentences should fit the offender, not the offense.

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Legislative Sentencing Responsibility

• Legislators provide wide parameters for possible sentences.

• Indeterminate sentencing:– Has both a minimum and a maximum term of

imprisonment.

– Actual term determined by parole board.

• Determinate Sentencing:– Specific number of years that must be served.

– Also called “fixed sentencing.”

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Judicial Sentencing Responsibility

• Judges had wide discretion in deciding on a specific sentence until the mid-1970’s when the sentencing discretion of judges was greatly curtailed.

• Judges may choose among sentencing options provided by legislature.

• Judicial discretion reflects the “rehabilitative model.”

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Executive Sentencing Responsibility

• Governors, parole boards, and departments of corrections make decisions on when to release an inmate.

• Parole: the conditional release of an inmate from incarceration under supervision, after a portion of the sentence has been served.

• Good time: prisoners are awarded days off their terms as a reward for good behavior or participation in various programs.

• Pardon: an act of executive clemency that has the effect of releasing an inmate.

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Sentencing Options

• Prison• Parole• Probation• Intermediate sanctions• Fines• Restitution• Capital Punishment

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Imprisonment

• Placing a person in a prison, jail, or similar correctional facility for committing a crime.

• The U.S. imprisons a larger share of its population than any other nation.

• Compared to Europe, the prison sentences are quite long in the U.S.

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Cost of Imprisonment

• Construction costs for a single cell for a prisoner range from $75,000 to $100,000.

• Annual costs to house a prisoner range from $20,000 to $30,000.

Financial Projections over 30 Years for Building a New 500-Cell Prison Cells 1-Year Total 30-Year Total Construction costs 500 x $75,000 $37.5 million $37.5 million Incarceration costs 500x $20,000 $10 million $300 million Totals $47.5 million $337.5 million

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Imprisonment Jurisprudence

• Cooper v. Pate: Prisoners can sue prison officials in federal court.

• Estelle v. Gamble: Deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain, and thus violates the Eighth Amendment.

• Rhodes v. Chapman: Double-celling and crowding do not necessarily constitute cruel and unusual punishment.

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Probation

• Punishment that allows the offender to remain in the community without incarceration but subject to certain conditions.

• Principle alternative to imprisonment.• Designed as a means of maintaining control over

offenders while permitting them to live in the community.

• Approximately 4 million adults are on probation in the U.S.

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Factors to Consider in Granting Probation

• The defendant is not likely to commit another offense.

• The public does not require that the defendant receive the penalty provided for the offense.

• The rehabilitation of the defendant does not require that he or she receive the penalty provided for the offense.

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Intermediate Sanctions

• Diversionary Programs– Counseling Programs– Therapy– Medication and counseling

• Fines• Restitution

– Direct Restitution – Symbolic Restitution

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Death Penalty

• Capital Offenses– Used to include variety of crimes, including rape– Coker v. Georgia (1977): rape is not a grave

enough offence to justify the imposition of the death penalty.

– Now, only murder and treason are generally death penalty cases

• All Western democracies, except the U.S. have abolished the death penalty as a punishment.

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Persons Executed in the U.S., 1930-2002

Insert Figure 15.3 on page 353 here.

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Furman v. Georgia (1972):

• Invalidated all 37 state death penalty statutes based on cruel and unusual punishment of the 8th Amendment.

• Did not hold that the death penalty was unconstitutional, but, rather, the methods used were unconstitutional.

• Caused states to revise their death penalty legislation.

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Gregg v. Georgia (1976)

• Held that the death penalty did not constitute cruel and unusual punishment under all circumstances.

• For a death penalty law to be constitutional it must provide for a bifurcated process.

1. Guilt phase2. Penalty phase

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Other Key Death Penalty Jurisprudence

• Thompson v. Oklahoma: Youths who are 15 years or younger at the time of the crime may not be executed.

• Stanford v. Kentucky: Youths who are 17 years old at the time of the crime may be executed.

• Penry v. Lynaugh: It is constitutional to execute mentally retarded persons.

• Atkins v. Virginia: Convicted defendants with an IQ of 70 or less may not be executed. – Overturned Penry v. Lynaugh.

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The Jury and the Death Penalty

• Witherspoon v. Illinois: Prospective jurors cannot be excluded because they oppose the death penalty.

• Lockhart v. McCree: Potential jurors may be excluded if they oppose the death penalty. – Overturned Witherspoon v. Illinois.

• Simmons v. South Carolina: Defense may tell jurors that the only alternative to a death sentence is life without parole.

• Harris v. Alabama: States may give judges the power to sentence a capital defendant to death even if the jury votes not to impose the death penalty.

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Jurisdictions Without a Death Penalty

• Alaska• District of Columbia• Hawaii• Iowa• Maine• Massachusetts• Michigan

• Minnesota• North Dakota• Rhode Island• Vermont• West Virginia• Wisconsin

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Prisoners Under Sentence of Death by Region

Insert Figure 15.4, page 358 here.

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